Dangerous trees

The safety of trees is nearly always the responsibility of the owner of the land on which they grow; but there are some exceptions, such as when a rental agreement requires the tenants of a property to manage the trees.

The tree owner or manager has a ‘common law’ duty of care to:

‘take reasonable care to avoid acts or omissions which they can reasonably foresee would be likely to injure their neighbour’

The tree owner also has a duty under the Occupiers Liability Acts to take reasonable steps to ensure visitors or trespassers on their land are safe. In practice this means that if a tree fails and causes damage to a person or property then the tree owner may be liable. The chances of making a claim, however, would usually depend on whether the owner had been negligent; for example, if the tree was obviously unsafe through damage or disease, and they failed to act to prevent the incident occurring. Therefore if you own trees it is sensible to have them regularly inspected by a competent arboriculturist.

A list of Arboricultural Association Registered Consultants is available on our website at www.trees.org.uk/Find-a-professional

The best way to deal with a dangerous tree on neighbouring land is to write to the tree owner as soon as possible politely expressing any concerns you have and asking them to have the tree checked by an arboriculturist. If you still can’t reach a satisfactory conclusion then it may be helpful to ask a third party who is known to both of you to mediate before relationships break down completely. As a last resort it may be possible to obtain a court injunction requiring the owner to deal with the tree, or in limited circumstances the local Council maybe able to help using their discretionary powers under the Local Government Miscellaneous Provisions Act 1976.

Overhanging trees and encroaching roots

It is generally best to discuss your concerns with the tree owner beforehand, but under established ‘common law’, you should be able to prune branches and roots that grow over your boundary, with or without the owner’s consent. You also have a legal duty, however, to take ‘reasonable care’ whilst undertaking the works, and you may be liable if you damage your neighbour’s tree, or cause it to become unstable. It is therefore unwise to undertake works without first consulting an arboriculturist. The parts cut off from the tree remain the property of the tree owner, so they should be offered back.

If overhanging trees or encroaching roots have caused damage to your property then you should contact your building insurer for advice. Your insurer will usually contact the owner of the trees asking them to abate the nuisance and will arrange for any repairs to be undertaken. If damage has not yet occurred, but you believe there is a foreseeable risk that the trees will cause damage in the future, then you should discuss your concerns with the owner and write to them asking them to have the trees inspected by an arboriculturist. You should keep copies of any letters sent as they prove that you have highlighted your concerns should damage occur in the future.

Tree Protection

There are a number of ways that trees can be protected by law within the UK. These include Tree Preservation Orders (TPOs), Conservation Areas, the Felling Licence system, Restrictive Covenants, and planning conditions within the planning system. It is important to find out from your local Council whether any legal restrictions apply before you undertake work on your trees as you may be liable to prosecution if permission is not first obtained.

Tree Preservation Orders (TPOs)

TPOs are administered by your local Council in its role as the Local Planning Authority (LPA) and are made to protect trees that provide a significant amenity benefit to the area.

All species of tree can be protected (but not hedges, bushes or shrubs), and a TPO can protect anything from a single tree to all trees within a defined area or woodland – but no species is automatically protected by a TPO (not even an oak!).

A TPO makes it a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree protected by that order, or to cause or permit such actions, without the authority’s permission. Anyone found guilty of such an offence is liable to prosecution, and an unlimited fine can be imposed for destroying or removing a protected tree without consent from the LPA.

To make an application to carry out works to a protected tree you will need to complete an application form and submit it to the LPA.

Conservation Areas

If a tree in a Conservation Area you have to give six weeks prior written notice to the LPA (by letter, email or on the LPA’s form) of any proposed work, describing what you want to do. This gives the LPA an opportunity to consider protecting the tree with a TPO. Normal TPO procedures apply if the tree is already protected by a TPO.

You do not need to give notice if the tree is less than 7.5 centimetres in diameter, measured 1.5 metres above the ground (or 10 centimetres if thinning to help the growth of other trees).

Felling Licences

Felling Licences are administered by the Forestry Commission.

You do not need a licence to fell trees in gardens. For trees outside gardens, however, you may need to apply to the Forestry Commission for a felling licence, whether or not they are covered by a TPO.

You can find out more about felling licences from the Forestry Commission website www.forestry.gov.uk

Restrictive Covenants

A restrictive covenant is a promise by one person to another, (such as a buyer of land and a seller) not to do certain things with the land or property. It binds the land and not an individual owner. This means that the restrictive covenant continues over the land or property even when the current owner(s) sells it to another person.

Covenants or other restrictions in the title of a property or conditions in a lease may require the consent of a third party prior to carrying out some sorts of tree work, including removing trees and hedges.

This may be the case even if TPO, CA and felling licence regulations do not apply. In such cases it may be advisable to consult a solicitor.

Trees and the planning system

Under the UK planning system, LPAs have a statutory duty to consider the protection and planting of trees when granting planning permission for development. The effect of development on trees, whether protected (e.g. by a TPO or Conservation Area) or not, is a material consideration that is taken into account when considering planning applications.

The amount of information required to enable the LPA to properly consider the effects of development proposals on trees varies between stages of the planning process and in relation to what sort of development is proposed. Table B.1 of British Standard 5837:2012 Trees in relation to design, demolition and construction – Recommendations provides advice to both developers and LPAs on an appropriate amount of information that will need to be provided either at the planning application stage or via conditions (see below).

Planning Conditions

Planning conditions are used by LPAs as a means of securing the retention of trees, hedgerows and other soft landscaping on sites during development and for a period following completion of the development. If planning conditions are in place then anyone wishing to undertake work to trees shown as part of the planning condition must ensure they liaise with the LPA and obtain any necessary consent or variation.

What does a Tree/Arboricultural Officer do within the planning system?

The Tree Officer is usually an employee of the local Council. Their job, like any other Council employee, is to serve the interests of the public. In the case of the Tree Officer within the Planning Department this is achieved by maximising the many and varied benefits that trees provide to the Council’s administrative area, through an input into the development management system.

In most situations the simple answer to this is no.

You have a common law right to prune back parts of a tree or hedge growing over the boundary into your property (subject to any legal restrictions being overcome first such as Tree Preservation Orders or conservation areas) but you cannot compel the owner of the trees or hedge to carry out this work or pay for it. As a general rule you have no legal right to a view which has been obscured by your neighbour’s trees.

If your neighbour owns an evergreen hedge close to your property you can make a formal complaint to your Local Planning Authority (LPA) under the High Hedges legislation as set out in Part 8 of the Antisocial Behaviour Act 2003. There is usually a charge for this process. The LPA will consider the complaint using standard government guidance set out in a document called Hedge Height and Light Loss. If your complaint is successful the LPA will determine an Action Height to which the height of the hedge must be reduced.

If your neighbour’s tree or hedge is dangerous and is a hazard to your property then there is action that can usually be taken. In this situation you should contact an arboricultural consultant for further advice.

It is always better to settle a dispute about trees amicably and it is recommended that you try to resolve it by talking to your neighbours first.

Further information:

• AA Tree Protections Brief Guide
• Over the Garden Hedge (DCLG website)
• Hedge Height and Light Loss (DCLG website)
• AA Registered Consultants
• More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

Under ‘common law’, you may be able to prune branches and roots which grow over your boundary.

However, you also have a legal duty to take ‘reasonable care’ whilst undertaking any works and you may be liable if you damage the tree or cause it to become unstable.

It is therefore unwise to undertake works without first consulting a qualified arboriculturist (tree expert), ideally approved by the Arboricultural Association.

You should also check with the Council prior to undertaking any works to make sure that the trees are not protected.

Can I get my neighbour to cut back or reduce the height of their trees or hedge?

In most situations the simple answer to this is no. You have a common law right to prune back parts of a tree or hedge growing over the boundary into your property (subject to any legal restrictions being overcome first such as Tree Preservation Orders or conservation areas) but you cannot compel the owner of the trees or hedge to carry out this work or pay for it. As a general rule you have no legal right to a view which has been obscured by your neighbour’s trees.

If your neighbour owns an evergreen hedge close to your property you can make a formal complaint to your Local Planning Authority (LPA) under the High Hedges legislation as set out in Part 8 of the Antisocial Behaviour Act 2003. There is usually a charge for this process. The LPA will consider the complaint using standard government guidance set out in a document called Hedge Height and Light Loss. If your complaint is successful the LPA will determine an Action Height to which the height of the hedge must be reduced.

If your neighbour’s tree or hedge is dangerous and is a hazard to your property then there is action that can usually be taken. In this situation you should contact an arboricultural consultant for further advice.

It is always better to settle a dispute about trees amicably and it is recommended that you try to resolve it by talking to your neighbours first.

Further information:

• AA Tree Protections Brief Guide
• Over the Garden Hedge (DCLG website)
• Hedge Height and Light Loss (DCLG website)
• AA Registered Consultants
• More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

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You may be able to depending on the importance of the tree, the nature of the building proposed and distance between the proposed building and the tree in question.

If the building work proposed requires planning consent, all trees which could potentially be affected by the development (including those on adjoining property) should be assessed by an arboricultural consultant in accordance with British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations, and details of this assessment submitted with the planning application. The Local Planning Authority should consider how the proposed development will affect trees in accordance with the same document and, if the process works correctly, this should prevent unacceptable damage from occurring to your tree. If you are concerned, you should instruct an arboricultural consultant to assist and if necessary, make a formal objection to the planning application within the statutory timeframe.

If the work proposed does not require planning consent, it may be less easy for you to influence. If your tree is protected by a Tree Preservation Order (TPO) or is located within a conservation area, legislation relating to tree protection overrides that of permitted development rights, and developers will risk prosecution if protected trees are damaged. If you consider that your tree provides sufficient public amenity value to warrant protection by a TPO, you can make a formal request to the Local Planning Authority to place a TPO on your tree. An arboricultural consultant can advise you on these matters.

Further information:

• British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations
• AA Tree Protections Brief Guide
• AA Registered Consultants
• More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

Topics:
Distance, tpo, tree preservation order, local planning authority, building, construction, neighbour

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Find a Professional
If you need advice or tree management services - always use an Arb Approved Contractor (Tree work) or a Registered Consultant (Arboricultural consultant).

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Under common law rights a neighbour can cut back any foliage that overhangs the boundary to the boundary line without reference to the owner of the tree/shrub (this includes roots!). If the tree is covered by a Tree Preservation Order (TPO) or is growing within a Conservation Area, the consent of the local planning authority must first be obtained. There is no right for anyone to enter the tree owner's land to carry out these works.

More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO

Topics:
Distance, tpo, tree preservation order, boundary, common law, roots, hedge, tree roots

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Find a Professional
If you need advice or tree management services - always use an Arb Approved Contractor (Tree work) or a Registered Consultant (Arboricultural consultant).

If the building work proposed requires planning consent, all trees which could potentially be affected by the development (including those off-site) should be assessed by an arboricultural consultant in accordance with British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations, and details of this submitted to the Local Planning Authority with the planning application.

This assessment will consider tree condition, dimensions, likely retention span (years), and future growth potential, and will inform design in relation to how close you can build to trees. If the tree is to be retained, constraints to be considered are those below ground and above ground. The below-ground constraints are dictated by the root protection area (RPA) the calculation of which is based on the stem diameter; the above ground constraints are dictated by the height and spread of the tree, future growth potential, shading potential and what you are proposing to construct.

If the work proposed does not require planning consent, it is advised that you still have the trees assessed in accordance with BS5837 to inform good design. If your tree is protected by a Tree Preservation Order (TPO) or is located within a conservation area, legislation relating to tree protection overrides that of permitted development rights, and you risk prosecution if protected trees are damaged.

You will require the services of an arboricultural consultant to assist you with these matters.

Further information:

• British Standard BS5837:2012 Trees in relation to design, demolition and construction – Recommendations
• AA Tree Protections Brief Guide
• AA Registered Consultants
• AA Approved Contractors
• More detailed information on TPOs: www.gov.uk/guidance/tree-preservation-orders-and-trees-in-conservation-areas#Flowchart-1-Making-and-confirming-TPO